The next encryption debate... WhatsApp v. feds

A conflict between WhatsApp and government officials has been quietly simmering.
A conflict between WhatsApp and government officials has been quietly simmering.

As the FBI and Justice Department's public battle against Apple wages on, another conflict between a U.S. technology company and government officials has been quietly simmering.

According to The New York Times, a federal judge approved a DOJ request to wiretap WhatsApp phone calls and messages for a criminal investigation.

The wiretap order, of course, didn't lead authorities to any of the account information they sought. WhatsApp's end-to-end encryption technology makes it impossible to decipher messages. WhatsApp began to implement encryption services two years ago, a month after the messaging service's acquisition by Facebook in 2014.

Federal authorities' attempts to compromise secure communication, both in the case of the FBI's request for Apple to unlock the iPhone used by Syed Rizwan Farook, one of the two San Bernardino shooters, and in the WhatsApp case, has led to an increasing divide between tech companies and the public sector.

The WhatsApp request is notable in that, according to an official who spoke with the Times, the investigation does not involve a terrorism case. Two weeks ago, U.S. Attorney General Loretta Lynch claimed that the FBI's request for Apple to help open the iPhone is a one-off request. However, the numerous requests made by authorities has made it clear that officials are looking to set precedents.

“The whole point of end-to-end encryption is that no one but the intended recipient of a message is able to decipher it,” wrote Nate Cardozo, staff attorney on the Electronic Frontier Foundation's digital civil liberties team, on an EFF blog post Sunday. “If the government decides to seek that second order against WhatsApp, it would almost certainly be grounded, not in the All Writs Act but in the ‘technical assistance' provision of the Wiretap Act.”

The aggressive discord between law enforcement authorities in the U.S. and elsewhere against technology executives threatens to upend oft-repeated calls from government officials for increased public-private cooperation. Last year, Pretty Good Privacy (PGP) creator and Silent Circle founder Phil Zimmermann, moved his company from the U.S. to Switzerland, citing the UK and U.S. governments' plans to further extend surveillance capabilities to encryption. Earlier this month, a Facebook vice president was detained in Brazil on charges of obstructing an investigation against an organized crime by failing to hand over content from WhatsApp messages.

While federal officials have been hesitant to attempt Brazil's approach, local authorities are less cautious. A county sheriff in Florida said last week that he would put Apple CEO Tim Cook behind bars if his agency faced the challenge of locked iPhones. “But believe you me,” said Polk County Sheriff Grady Judd. “If I get a toehold in this county and I can get the state attorney's office to prosecute, and a judge to back us up with it, I'll lock the rascal up.”

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